December 8, 2012
Two New California Laws Aim to Keep Immigrant Families Together
Child welfare advocates in California, working with the First Focus Campaign for Children, have won a hard-fought victory in the struggle to keep children of deported or detained immigrant parents out of the child welfare system and reunite them with their families. According to the groundbreaking 2011 report "Shattered Families" by award-winning journalist Seth Freed Wessler, at least 5,100 children in the foster care system have been prevented from reuniting with their detained or deported parents. The same report estimates that that number will surge by 15,000 in the next five years if nothing changes. Two laws recently signed by California Governor Jerry Brown may ultimately help to curb this trend and keep families together.
The "Reuniting Families Act" (SB1064) authorizes the family court to extend the time that child welfare agencies have to reunite children with their parents or to find a suitable relative for placement, regardless of the relative's immigration status. It also requires that the California Department of Social Services provide guidance to social workers on referring eligible children to legal services for obtaining Special Immigrant Juvenile Status, and to create a Memorandum of Understanding for child custody cases with foreign consulates in accordance with the Vienna Convention.
The "Calls for Kids Act" (AB2015) strengthens existing California Penal Law requiring that law enforcement notify parents, at the time of their arrest, of their right to make two phone calls to arrange for the care of their children.
The strategy of building and expanding on existing state child welfare and penal laws is one that advocates hope will be replicated in other states. Expanding the procedural due process protections of the child welfare and penal systems could have a dramatic impact on the ability of detained or deported parents to retain their parental rights and prevent permanent separation. In an era of increased state enforcement of federal immigration law, these types of protections arguably require more of state officials to preserve family unity than current federal immigration enforcement guidelines.
-- Sarah Rogerson
Immigration Article of the Day: Dangerousness on the Loose: Constitutional Limits to Immigration Detention as Domestic Crime Control by Frances Miriam Kreimer
Dangerousness on the Loose: Constitutional Limits to Immigration Detention as Domestic Crime Control by Frances Miriam Kreimer. November 1, 2012 New York University Law Review, Vol. 87, No. 5, 2012
Abstract: The United States immigration detention regime that was reborn in the 1980s is not only unprecedented in scale, but also in rationale. Whereas immigration detention had historically been justified primarily as a means of ensuring immigration compliance, with a secondary purpose of protecting national security, today’s system increasingly functions in collaboration with criminal law enforcement systems to incapacitate allegedly dangerous individuals for the purpose of preventing potential domestic crime. Regardless of the validity of judicial deference when immigration detention truly serves to aid in the removal process, this Note argues that such deference cannot legitimately be extended to the newly ascendant crime control function of immigration detention. At minimum, Due Process requires immigration detention procedural safeguards that are parallel to those in other preventive detention contexts, in which the government bears the burden of individually demonstrating a need for confinement.
ICE Agents Deported Chicago Residents Without Criminal Histories Based on Unsubstantiated Claims of Gang Membership
Recent years have seen records of removals of noncitizens from the United States, including more than 400,000 in fiscal years 2010 and 2011. We have been reassured by President Obama and Department of Homeland Security Secretary Janet Napolitano that the removal efforts focus on "criiminal aliens."
In a troubling post, States Without Nations reports that federal agents in a special "Gang Surge Operation" "have been arresting and deporting people based solely on unreviewed allegations of alienage and gang membership, including juveniles." When confronted with the facts, an agent "indicated satisfaction that U.S. residents merely accused of gang membership and minor crimes were being deported with neither criminal nor immigration hearings." Click the link above for more information.
December 7, 2012
Proposal to add judicial admonishment about immigration to FRCP 11
The committee charged with enacting and amending the Federal Rules of Criminal Procedure is currently considering an amendment to Rule 11 that would require federal trial court judges to tell defendants that a conviction may result in adverse immigration consequences. Summary of the Report of the Judicial Conference Committee on Rules of Practice and Procedure (September 2012). If enacted, the text would “expand the colloquy under Rule 11 to require advising a defendant of possible immigration consequences when a judge accepts a guilty plea.” Id. at 26.
The proposed amendment is a response to the Supreme Court’s recognition in Padilla v. Kentucky, 130 S. Ct. 1473 (2010), that immigration consequences are often inextricably tied to criminal proceedings and uniquely severe, the committee noted. According to the memo distributing the proposed change, “a majority of the advisory committee concluded…that deportation is qualitatively different from other collateral consequences that may follow from a guilty plea….” Id. at 27.
As currently written, the proposal would add a section (O) to FRCP 11(b)(1) that provides:
“Before the court accepts a plea of guilty or nolo contendere, the defendant may be placed under oath, and the court must address the defendant personally in open court. During this address, the court must inform the defendant of, and determine that the defendant understands, the following….that, if convicted, a defendant who is not a United States citizen may be removed from the United States, denied citizenship, and denied admission to the United States in the future.”Id. at Appendix D-7. To avoid having the judge attempt to discern whether a particular defendant is a United States citizen or not—a question that is sometimes murky—the amendment would require that the court admonish every defendant. Id. at Appendix D-5.
Whether this is a wise move remains to be seen. I’m included to think it is. First, many states already impose a similar requirement on trial judges. Indeed, the Padilla Court cited 22 such state requirements. 130 S. Ct at 1486 n.15. Second, the proposal is sufficiently broad that it doesn’t overly threaten to pit a defense attorney who has properly advised her client that the client won’t face immigration consequences against a judge who is saying she might. I’ve seen some anecdotal reports of this happening and find it worrisome.
My biggest concern with adding this language to the Rule 11 allocution isn’t really about the proposed language. My concern is just that it won’t have much impact on defendants; rather, I suspect that it will become just another line in a pro forma soliloquy.
It’s worth emphasizing that this language hasn’t yet been added to Rule 11. The Advisory Committee on Criminal Rules, then the Judicial Conference of the United States approved it. That’s not the end of the process, however, The Judicial Conference forwarded the proposed amendment to the Supreme Court for its consideration with a recommendation that it be adopted. The Supreme Court has not announced a decision.
César Cuauhtémoc García Hernández is an assistant professor at Capital University Law School and publisher of crImmigration.com, a blog about the convergence of criminal law and immigration law, which was ranked among the 100 best law blogs of 2012 by the ABA Journal. Take a minute to vote for crImmigration.com as your favorite source of legal information by going to the ABA Journal's web site and finding crImmigration.com listed in the "niche" category. A version of this article appears on crImmigration.com.
Immigration Article of the Day: Illegal Emigration: The Continuing Life of Invalid Deportation Orders by Richard Frankel
Illegal Emigration: The Continuing Life of Invalid Deportation Orders by Richard Frankel (Drexel University - Earle Mack School of Law), Southern Methodist University Law Review, Vol. 65, p. 503, 2012 Drexel University Earle Mack School of Law Research Paper No. 2012-A-05
Abstract: Federal appeals courts overturn more than one thousand deportation orders every year. A significant number of those reversals involve non-citizens who are abroad because they have been deported as a result of losing their cases at the administrative level. Although an order overturning a deportation order ordinarily restores non-citizens to their prior status of being lawfully present in the United States, federal immigration authorities have used the fact of the non-citizen’s now-invalidated deportation to subject such non-citizens to a new and previously inapplicable set of standards that effectively prevents them from returning. Under this practice, non-citizens who seek to return after winning from abroad are treated as “arriving aliens,” meaning that because they are now outside the United States, the government can keep them out, even if they never should have been removed in the first place. Neither courts nor scholars have addressed the lawfulness of applying the law’s more stringent “arriving alien” standards to non-citizens who prevail from abroad rather than the more lenient “deportability” standards that apply prior to the non-citizen’s removal. This Article examines the competing arguments for and against the government’s practice and concludes that relying on non-citizens’ wrongful deportations to apply new rules that keep non-citizens from returning deprives them of meaningful judicial review of their deportation orders in violation of both federal immigration law and the U.S. Constitution. Instead, requiring the government to apply the same “deportability” standards throughout a noncitizen’s removal proceedings will best ensure that erroneously deported individuals are permitted to reenter the United States, reunite with their families, and resume their lives as they existed prior to their removal.
December 6, 2012
Welcome Guest Blogger Sarah Rogerson!
We are pleased to announce that Sarah Rogerson, Assistant Clinical Professor of Law at Albany Law School will be blogging with us for the next couple of weeks. Sarah is the Director of the Family Violence Litigation Clinic & Immigration Project at Albany Law School. Sarah's scholarship focuses on the intersections between domestic violence, family law, international law and immigration law and policy.
Before joining the faculty at Albany Law School, Sarah completed a Clinical Teaching Fellowship at University of Baltimore School of Law, where she taught and supervised students enrolled in the Immigrant Rights Clinic. Previously, she represented immigrant adults and children in cases involving torture, domestic violence, human trafficking and guardianship petitions at the Human Rights Initiative of North Texas, Inc., in both state and federal courts.
We look forward to reading your posts, Sarah!
The New Border: Illegal Immigration’s Shifting Frontier
In a major investigation about changes in immigration patterns, ProPublica's Sebastian Rotella reports that the greatest flow of immigrants to the United States are no longer from Mexico, but from 3 impoverished Central American countries where people are fleeing local violence or poverty and trying to make it across Mexico's southern border safely. In the piece, Rotella:
* Explains how Mexico's southern frontier has become a national security concern for U.S., Mexican and Central American leaders and why these countries don't have the resources to fight immigration and maintain stability by fighting gangs and drug trafficking;
* Shows how most non-Mexican migrants come from Honduras, El Salvador and Guatemala, in part because of crime and extreme violence at home;
* Reports on the routes Central Americans take to come here (such as La Bestia) and how they're often terrorized by drug gangs like the Zetas who kidnap, shake down, rob and rape them;
* Shares the personal stories of Oscar & Jennifer Cruz and "Marco" and how much they paid, what they went through and why they decided to come to America;
* Notes how terrorists have tried to come here by using the Central America through Mexico routes;
* And what Mexican and American officials are doing to stop this new influx of illegal immigration.
Is the Time for Immigration Reform Now?, or Now is the Time for Immigration Reform!
With the results in from Election 2012, a sea-change has occurred in the political prospects for comprehensive immigration reform. Let us step back for a second and see where the nation stands, and where it might go, with respect to meaningful reform.
For close to a decade, Congress has debated comprehensive immigration reform, which presumably would include (1) some kind of path to legalization for millions of undocumented immigrants, (2) increased enforcement measures, and (3) reform of the legal immigration provisions of the U.S. immigration laws. As we all know, Congress has repeatedly failed to act on reform proposals, even failing in 2010 to pass a version of the DREAM Act that would have addressed a small subset of the immigration issues facing the nation.
In 2008, President Obama campaigned for office in support of comprehensive immigration reform. After winning the election, he increased enforcement dramatically –- indeed, setting deportation records of nearly 400,000 a year in the last two years -- in hopes of convincing Republicans that the administration was serious about immigration enforcement. The President ultimately was unable in his first term to persuade Congress to pass immigration reform.
With the void in immigration reform at the federal level, states entered the fray. In just the last few years, several state legislatures, including those in Alabama, Arizona, Georgia, and South Carolina, passed state immigration enforcement laws designed primarily to encourage “self deportation” by undocumented immigrants. Many Latinos found the debates surrounding those laws to be, at a minimum, insensitive. Some observers saw the support for the state measures as fueled at least in part by anti-immigrant, anti-Mexican, and downright racist sentiments.
Courts found most, but not all, of the major provisions in the state immigration enforcement laws to run afoul of the U.S. Constitution and intrude on the federal power to regulate immigration. Indeed, in the most well-known case, a conservative Supreme Court in June 2012 invalidated three of four core provisions of Arizona’s S.B. 1070 in Arizona v. United States.
Political action for immigration reform continued. In June 2012, after several years of tinkering with prosecutorial discretion in removal, the Obama administration unveiled the Deferred Action for Childhood Arrivals (DACA) program, which provides undocumented immigrants who came as children to the United States to relief from removal and temporary work authorization (and, in some states, eligibility for driver’s licenses).
As a political consultant might say, DACA energized the base. Latinos as a group -- and a majority of other Americans -- supported DACA. And Latinos overwhelmingly supported President Obama over Mitt Romney in the 2012 Presidential election.
Recall that, during the Republican primaries, Romney supported Arizona’s S.B. 1070 and other measures designed to encourage “self deportation,” opposed the DREAM Act, and had as a top immigration advisor Kris “Deporter in Chief” Kobach, the archtitect of many of the state immigration enforcement measures. It is hard to see how any of these might have encouraged Latino about the possibility that Romney might be good on immigration.
Although hindsight often characterizes the Obama victory as overwhelming and even preordained, it was an extremely close race. The result was far from certain in the days leading up to the election. Many credited Obama's victory at least in part to overwhelming Latino support (and the lack of enthusiasm generated among Latinos for Romney). Republican strategists now have gone back to the proverbial drawing board in an effort to figure out how to attract Latino voters.
Not long after the election, political leaders, including some Republicans as well as President Obama, expressed renewed support for immigration reform. Earlier this week, former President George Bush emphasized in a speech that immigrants benefit the American economy and strongly suggested that Republicans should rethink their immigrant unfriendly positions if they want to attract Latino voters.
There also appears to be growing resistance to enforcement-only approaches to immigration. For example, California Attorney General Kamala Harris, an ally of the President, this week encouraged local law enforcement agencies to not adhere entirely to the Obama administration's Secure Communities program, which requires local law enforcement to provide federal immigration authorities with data about immigrants who are arrested. The Los Angeles County Sheriff's office, one of the largest law enforcement agencies in the country, also announced this week that it would not follow the Secure Communities program to the letter.
All in all, the political time is right for comprehensive immigration reform. However, for reform to become a reality, interested parties cannot rest on the laurels of an Obama presidential victory. Rather, continued pressure -- like that that resulted in DACA -- is necessary to convince Congress to act. President Obama is quite correct that he cannot do what Congress will not do. However, immigrant rights activists, Latinos, and others who support responsible and humane immigration laws and policies must make sure that meaningful immigration reform remains on the front burner. Otherwise, we will have to wait for the next Congress, next President, etc.
Routine Exceptionality: The Plenary Power Doctrine, Immigrants, and the Indigenous Under U.S. Law by Susan Bibler Coutin, Justin Richland, and Veronique Fortin
Routine Exceptionality: The Plenary Power Doctrine, Immigrants, and the Indigenous Under U.S. Law by Susan Bibler Coutin (UC Irvine), Justin Richland (University of Chicago), and Veronique Fortin (UC Irvine), September 12, 2012 UC Irvine School of Law Research Paper No. 2012-79
Abstract: Our paper examines how law-making regarding Native and Central Americans in the United States gives rise to documentary forms that challenge binaries that have plagued sociolegal scholarship. In the United States, plenary power gives the federal government what former U.S. attorney general Michael Mukasey termed the "administrative grace" to grant privileges to members of groups, such as immigrants and Native Americans, who are citizens of other nations, and thus whose allegiance is questioned. Matter of Compean 24 I&N Dec. 710 (A.G. 2009). Plenary power is understood by the Supreme Court as having "always been deemed a political one, not subject" to judicial oversight. Lone Wolf v. Hitchcock, 187 U.S. 553 (1903). This understanding makes plenary power something of a legal black box – analysis typically ends with the determination that the authority in question is a political one beyond legal review. Yet members of these groups experience plenary power precisely in its regulatory form, in the ways in which they are demanded to produce documents to establish juridical and political identities before the state. Such documents, which simultaneously produce and contest accounts of immigrant and indigenous histories, create alternative understandings in which law is characterized neither by gaps nor by gaplessness, but rather by embodiment in material form.
December 5, 2012
Access to Counsel and the Political Geography of Immigration Detention
Posted by Anil Kalhan
Among the more striking comments at the event convened last week in New Orleans by Human Rights First, Dialogues on Detention: Lessons from Criminal Justice Reform for Immigration Detention, were those by Louisiana State University Law School Professor Ken Mayeaux, who directs the school’s immigration clinic. In the day's final panel, on access to counsel, Mayeaux painted a grim picture concerning the ability of noncitizens detained within Louisiana – whose immigration detention beds comprise 6 percent of the total number of ICE detention beds in the country, but 90 percent of whose detainees have been transferred from out of state – to obtain legal representation, either for bond hearings or to defend against removal itself. He offered up the Oakdale Federal Detention Center for particular scorn. Back in the 1980s, he said, "someone had the brilliant idea to build a 900-bed detention facility in the middle of nowhere." Today, in practice, Mayeaux asserted, “there is no access to counsel at Oakdale.”
Even when individuals are not detained, the complexities of immigration law make the role of counsel for noncitizens in removal proceedings – who, unlike criminal defendants, have no right to government-appointed assistance of counsel – exceptionally important. For example, a 2011 study of cases initiated in New York – which was jointly conducted by the Vera Institute of Justice and the Immigrant Representation Study Group convened by Judge Robert Katzmann of the U.S. Court of Appeals for the Second Circuit – found that while 74 percent of non-detained individuals represented by counsel secured successful outcomes in their cases (defined as either relief from removal or termination of proceedings), that figure dropped to 13 percent for non-detained individuals who lacked legal representation. But as with the criminal justice system, in which individuals held in pretrial detention fare worse in their cases than individuals who are not detained, noncitizens in immigration detention fare considerably worse in their cases: only 18 percent of legally represented individuals in detention secured successful outcomes, while a scant 3 percent of unrepresented detainees were able to do so.
Moreover, the likelihood of obtaining legal representation in the first place is considerably lower for detained noncitizens – and lower still when ICE transfers those individuals long distances to remote detention facilities that are far from major urban centers, as the 2011 New York study found to occur with approximately 64 percent of individuals originally taken into custody in New York. According to Human Rights First, approximately 40 percent of ICE’s total detention bed space (which currently totals approximately 33,000 beds) is at least 60 miles away from an urban center – and in many cases even more remote. The consequences of rendition into this archipelago of facilities can be dramatic. A 2009 study by the National Immigrant Justice Center found that 80 percent of all detainees were held in facilities that were underserved by legal aid organizations. While non-detained individuals who remained in New York were represented by counsel in approximately 73 percent of all cases, only 21 percent of individuals who were transferred to these remote detention centers were legally represented in their proceedings. Those figures are broadly consistent with earlier data indicating that as few as 16 percent of detained individuals nationwide are represented by legal counsel in their proceedings. (Two reports by Human Rights Watch, one published in 2009 and one published in 2011, further document the massive scale of detainee transfers to remote detention facilities and the implications for access to counsel.)
Of course, immigration detention is not, strictly speaking, a “legal black hole” in the sense that Lord Steyn characterized Guantanamo: a place “beyond the rule of law, beyond the protection of any courts, and at the mercy” of government officials altogether. But for many noncitizens, their rendition to remote detention facilities where they lack any meaningful access to lawyers – and for that matter, where they also lack the protection of binding detention standards, or recourse to effective mechanisms of holding their jailers accountable to the non-enforceable standards that do exist – can operate as its functional equivalent. For these individuals, geography often becomes destiny.
In his posthumously published 2011 book, The Collapse of American Criminal Justice, William Stuntz draws attention to the role played by geography in the evolution of the politics of crime in the United States:
The vice wars of the late nineteenth and early twentieth centuries … invited voters in America’s small towns and countryside to weigh in on the character and consequences of crime outside of their own jurisdictions, chiefly in America’s cities. State and national politicians learned a crucial lesson: they could win votes in some places by attacking crime in others. [p.191]
In more recent years, the political geography of mass incarceration has contributed further to this underlying dynamic, as the incarceration of offenders in remote locations, far from their home communities, has given those remote communities tangible interests in maintaining or increasing those levels of imprisonment. While prison expansion has occurred in both urban and remote locations, it has had particularly significant consequences for smaller communities. In many instances, prison expansion has been pitched to these communities as offering significant economic benefits, even as the actual evidence concerning those supposed benefits has been more equivocal. Moreover, since the Census counts incarcerated offenders as “residents” of the jurisdictions in which the prisons are located, rather than their own home communities – even in situations in which those individuals are ineligible to vote – some remote communities have reaped political windfalls from the incarceration of these new “residents” in their communities when the boundaries of federal, state, and local political districts have been apportioned.
Thus, the “carceral bargain” (to draw upon Sharon Dolovich’s concept) by which the government excludes and maintains control over prisoners has an equivocal aspect. On the one hand, the bargain depends upon prisoners being largely invisible from the typical citizen’s day-to-day consciousness – so that, as Dolovich argues, “society as a whole . . . need not think about them again until they are released.” At the same time, however, that bargain is also reinforced, at least partially, by the ways in which prisoners’ local presence while incarcerated is tangibly felt and experienced in the communities where prisons are located.
The political geography of immigration detention offers an interesting variant on this dynamic. Immigration detention does not provide the opportunity for so-called “prison-based gerrymandering” presented by criminal incarceration, but local communities often are lured by similar hopes that detention might offer economic benefits. As Immigration Judge Wayne Stogner noted during last week’s HRF event in New Orleans, “there is only one reason why the Oakdale facility was built in the middle of nowhere: money.” When the facility was built back in 1985, Oakdale (population 7,100 at the time, and population 7,780 as of 2010) had endured significant economic hardships due to plant closings that prompted the loss of almost 1,000 jobs. With an unemployment rate of almost 32 percent, the promise of over 300 jobs as a result of a detention facility with almost 1,000 beds was an inviting one – indeed, a town meeting on the project reportedly drew hundreds of supporters and no opponents. When the town ultimately was awarded the facility, the local newspaper proclaimed, in a three-inch, red-inked headline, “WE GOT IT!”
For the federal government, recounted Stogner at the HRF event, Oakdale offered a location less costly than its competitors. But advocates suspected from day one that detaining individuals in such a remote location would interfere with individuals’ access to counsel. The ACLU and Lawyers Committee for Human Rights (the predecessor to Human Rights First) even filed suit to block INS from opening the facility, as the Houston Chronicle reported at the time:
Now, with the center nearing completion on a 30-acre fenced enclosure hardly three miles from City Hall, Oakdale's rather offbeat crusade would seem a sure thing - except for some meddling New York lawyers.
“The ACLU,” said Oakdale civic booster James Sandefur, accenting each initial of the American Civil Liberties Union the way a civil rights leader might say, KKK.
The ACLU has filed suit in Washington challenging the use of the Oakdale center to house aliens, arguing that the new prison is so far out in the sticks that immigrants would be automatically precluded from justice.
“The problem is that the city of Oakdale, in a rural area of Louisiana, only has five lawyers,” said Arthur Helton, director of the political asylum project of the Lawyers Committee for Civil Rights, which has joined the ACLU in the lawsuit.
Helton, careful to add that “while I'm sure that those five lawyers will do what they can,” said they would be too few to handle the hundreds of political asylum cases the detention center is likely to generate.
* * *
“There is a terrible tragedy in the offing," Helton said, arguing that if asylum cases are sent to Oakdale, the migrants will be processed and deported without a chance to adequately argue claims that they face political persecution back home.
Helton indicated suspicion that the INS may have picked rural Oakdale for exactly that reason: to avoid the free legal defense apparatus to aid aliens already in place in urban centers like Miami, San Francisco, New York and Houston. [link]
Helton was prescient, describing precisely what ultimately came to pass. (Indeed, above and beyond the lack of access to counsel that Helton predicted, mass transfers of detainees from the places where they were arrested to Oakdale and other facilities in Louisiana have often afforded the government the benefit of substantive legal standards that have been less favorable to the noncitizens’ claims for relief in removal proceedings, as Nancy Morawetz and Human Rights Watch have both documented.) But the ACLU and LCHR lawsuit was dismissed, and Oakdale became a foundational paradigm, of sorts, for what we might understand as an immigration detention variant of the “carceral bargain,” as state, local, and private actors have enthusiastically lined up in hopes of benefiting from the federal dollars that flow in their direction when they contract with ICE to detain noncitizens.
The Obama administration’s detention reforms since 2009 have sought to temper some of these excesses, most notably by limiting the use of remote local jails and building greater detention capacity closer to the places where detainees live and are initially taken into custody. Through these adjustments, ICE hopes to limit the overall extent to which noncitizens are routinely transferred to locations far from their lawyers, families, and other community ties. These changes in ICE’s policies and practices could eventually contribute to greater access to counsel for many noncitizens in removal proceedings. However, as I have argued elsewhere, the immense and growing overall scale of immigration detention and enforcement makes the ultimate success of these initiatives deeply uncertain. Especially given the immense, unfulfilled need for access to quality legal representation for noncitizens – whether detained or not – transforming the political geography of immigration detention, along with its corresponding carceral bargain, remains a long-term challenge.
(Cross-posted at Dorf on Law.)
California AG: OK to Resist S-Comm's Detainer PolicyFrom the Associated Press:
California's top prosecutor said Tuesday it's up to local police agencies to decide whether to comply with federal government requests to hold undocumented immigrants.
The statement by state Attorney General Kamala Harris involves the federal Secure Communities program, which was launched in 2008 to catch the worst criminal offenders.
Governors in New York, Illinois and Massachusetts previously announced their desire to pull out of the program in 2011, and various municipalities and counties around the country have withheld cooperation or expressed opposition.
States such as Colorado and Arizona have supported the program since its inception.
The Obama administration said in June 2011 that it would reform the program to target only the most serious threats to public safety.
Harris said Tuesday the program is still "flawed" because nearly one-third of the people targeted by the requests in California have never been convicted of a crime.
Immigration and Customs Enforcement statistics indicate that 2,388 illegal immigrants with no convictions were detained and deported after arrests in California under the program between March 1 and June 30.
Another 1,955 were deported after misdemeanor convictions during the same period, while 4,094 convicted felons were deported.
The Secure Communities program checks the immigration status of people who are arrested for any crime, and federal immigration officials have insisted local police agencies must honor all requests for detentions.
Harris said her office has received dozens of inquiries from sheriffs and police chiefs confused about whether they must comply and hold detainees for up to 48 hours after they otherwise would have been released.
Los Angeles Police Chief Charlie Beck and others have said they want to stop honoring the immigration detention requests in cases involving low-level crimes.
"In the interest of public safety, it is our recommendation that those chiefs and sheriffs make a decision about whether or not they will detain an illegal immigrant based on their priorities," Harris said.
In a bulletin, she pointed out that the federal government neither reimburses the local police agencies nor protects them from lawsuits for wrongful arrests.
She also asserted that the federal government can't "require state officials to carry out federal programs at their own expense."
Last fall, Gov. Jerry Brown vetoed a bill to limit law enforcement involvement with Secure Communities, which has been blasted by immigrant advocates who say it deters the reporting of crime because people are afraid to come forward. A similar bill was reintroduced this week in the state Legislature. Read more...
Profile Your Immigration Law Clinic
Do you want to post a profile of your law school's immigration law clinic on the ImmigrationProf blog? If so, please feel free to send me (firstname.lastname@example.org) a profile with information about the clinic -- and perhaps pictures and a story or two about a recent case.
Lack of Latino Role Models in Books for Young Latino Readers
Earlier this week, ImmigrationProf reported on the criticism of the hit film Argo for having Ben Affleck portray the Mexican-American hero of the spy caper and effectively erasing his Mexican ancestry. Along similar lines, it appears that young Latino readers have a very difficult time finding any books with Latino characters. Read on.
Why is it so hard to find Latino role models in popular American culture? Finding Latinos in positive roles on television and film can be difficult. By the way, skip the recent Oliver Stone film Savages if you want to see positive portrayals of Latinos.
From the Bookshelves: Five Grounds by Scott Rempell (A Novel)
From distant corners of the globe, three strangers risk everything to reach the shores of the United States. In Ethiopia, Tesfaye abandons his post at the Ministry of Defense and attempts to escape the country while a crazed rebel commander hunts him down for reasons he will spend years trying to fully understand. Lin’s mother forces her to leave China to protect her from the same fate that led to her father’s disappearance. In Mexico, Sofia’s health rapidly deteriorates, so she leaves behind her two young children and the memory of a murdered husband. These three do not realize just how perilous their journeys will be, nor do they know that reaching U.S. soil will just be the beginning. The dire circumstances that cause them to flee their homelands follow them across oceans and deserts. As Tesfaye, Lin, and Sofia confront their pasts, a federal immigration agent seeks to unravel their new lives. In the process, their once divergent paths ultimately draw closer together. Although Five Grounds is a novel, the depicted story lines are based on a number of true historical events and ongoing circumstances.
Immigration Article of the Day: What's Blood Got To Do With It? Determining Parentage for ART Children Born Overseas by Kristine S. Knaplund
What's Blood Got To Do With It? Determining Parentage for ART Children Born Overseas by Kristine S. Knaplund Pepperdine University School of Law November 1, 2012 Pepperdine University Legal Studies Research Paper No. 2012/30
Abstract: The United States has long followed the English common law view that citizenship can be attained at birth in two ways: by being born in the U.S. (jus soli), or by being born abroad as the child of a U.S. citizen (jus sanguinis). The first, jus soli, is now part of the 14th amendment to the U.S. Constitution: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the state wherein they reside.” Jus soli theoretically does not inquire into the citizenship of the child’s parents; the relevant fact is that the birth takes place in the United States. Jus sanguinis, in contrast, arises from the parent-child relationship. The State Department translates jus sanguinis as “from the bloodline,” citing it as the “traditional Roman law principle.” By “natural parent,” the State Department means a blood relationship with a U.S. citizen: “It is not enough that the child is presumed to be the issue of the parents’ marriage by the laws of the jurisdiction where the child was born.” A purely genetic connection to the child is sufficient to establish parentage in relatively few instances in American law. One is child support: even if the genetic father has had no contact with the child, and has done nothing to establish a relationship (or even been prevented from knowing about the child), the genetic connection may be enough if no other presumed father is on the scene. This article explores a second instance in which the genetic connection is paramount: when an American citizen gives birth abroad. A genetic test works well for children conceived coitally, but may wreak havoc for those conceived using assisted reproduction techniques (ART). Citizenship has recently been denied to the children of two American women who used anonymously donated gametes to conceive and give birth to a child: one in Israel, and one in Switzerland; in a third case, the U.S. Embassy refused to recognize the birth mother as the child’s mother because she had used donated eggs and given birth to the child in India. Part I of this Article discusses the origins of jus sanguinis in Roman and English common law, including ancient and medieval views of conception and maternity in determining the child's bloodline. Not surprisingly, these views differ significantly from those held today. Taking into account this scientific background, Part II examines citizenship laws in early U.S. history, and assumptions of who were the parents of a child, both in wedlock and out of wedlock. While the definition of paternity has always taken note of biology as well as a man’s relationship to the birth mother, science began to play a more prominent role in the legal definition of parenthood once blood grouping and blood tests were available in the early 1900s. Part III then introduces the law of U.S. citizenship today, which in its main outlines is the same as first codified in 1952. The ability of DNA testing to positively identify the father in most cases, plus advances in ART that separate the two functions of the birth mother – genetics and gestation – have greatly complicated the definition of parentage for children, but the State Department has, in large part, continued to use the same parentage standard first detailed in 1952. Part IV examines and critiques three methods of identifying parentage: the State Department’s preferred method (genetics), the common law parturient test, and the recently developed intent test, to examine which method of determining parentage should be used for children born abroad. Part V concludes the article.
Book Review: Kanstroom Reconsiders the Utility of Deportation as a Crime Control Strategy
If immigration law is a political tinderbox and doctrinal mess, then deportation law is the clearly demarcated salve: at some point, the problem literally disappears beyond our borders. In his latest book, Aftermath: Deportation Law and the New American Diaspora, Boston College law professor Daniel Kanstroom tries to complicate our understanding of the “problem” that immigration law targets by chronicling deportation law’s increasing use as an adjunct of criminal law enforcement, attacking the federal government’s myopia regarding deportation’s social consequences, and challenges policymakers and advocates to reimagine the role of fairness and rationality in deciding who gets to remain in the United States and who is forced to leave.
The nation’s deportation regime, Kanstroom explains, is “massive” (ix): well over 300,000 people removed each of the last several years, another 700,000 or so returned informally, and a $17 billion immigration policing budget (12, 30-31). All of this naturally results in severe consequences for the people subjected to deportation and their families. Kanstroom poignantly tells the stories of individuals whose homes have been raided by immigration officials, people who have suffered abuse while in immigration prisons, United States citizens wrongly deported, and children torn from their parents.
Where Aftermath truly shines, though, is in Kanstroom’s ability to segue from his awareness of the human impact of immigration policy into a prolonged analysis of immigration law’s irrationalities and fault lines. “[D]eportation,” he writes, “has historically worked as a powerful and efficient government tool of discretionary social control and a key component of the national security state” (29). While deportation law’s target du jour has changed over the course of the nation’s history, today there is little doubt about its focus: noncitizens caught up in the criminal justice system (37).
But deportation as a solution to our own crime problems is wrongheaded. First, the underlying presumption that immigrants are prone to commit more crime than United States citizens is flatly contradicted by reams of evidence (85-89). In fact, immigrants commit less crime and are imprisoned at lower rates than United States citizens. If anything, we ought to be concerned about the fact that immigrants and their children become more involved in crime as they become more embedded in United States culture. This, Kanstroom suggests, is the true “Americanization” problem that should concern policymakers (87).
Second, Kanstroom powerfully argues that relying on deportation as a crime-control strategy is nonsensical. It may be easy to think of deportees as “someone else’s responsibility” once they leave the United States, but that type of social policy shortsightedness ignores on-the-ground realities (16-17). Flooding impoverished nations with individuals who frequently lack any meaningful ties to their country of citizenship creates a security and economic mess that affects people there and here (152-54).
No better example exists than the Mara Salvatrucha (MS-13), one of today’s largest and most violent gangs. MS-13 began in Los Angeles, made its way to El Salvador when many of its members were deported, then proceeded to destabilize Central American communities (153-54). Today, MS-13 is a thriving transnational operation—its affiliates are in 42 states, Washington, D.C., and México—that the FBI views as so problematic it has launched an international task force specifically targeting it and its leading counterpart Mara 18.
Furthermore, Kanstroom argues that the United States retains a normative interest in what happens to deportees because they are frequently subjected to repressive policies. In El Salvador, Kanstroom writes, “deportees have become scapegoats for worsening crime and other societal problems.” (149). Meanwhile, in Haiti deportees are imprisoned in disease-ridden jails where dying is a very real possibility (147-48). All without much care for whether these individuals are actually dangerous (149).
Kanstroom goes beyond deploring this treatment abroad. Writing with the insight available only to someone with his extensive advocacy history, he draws a clear line between these conditions and the United States’ treatment of individuals facing removal. Our immigration policing apparatus relies increasingly heavily on the federal government’s criminal prosecution power. Rather than view immigrants as individuals coming in search of a better life, today’s dominant immigration law enforcement narrative paints them as dangerous criminals. Immigration raids “tend to be large militaristic exercises that often seem disproportionate to the threat posed by the often terrified workers,” he explains (56), and enterprising federal prosecutors “bec[o]me engaged in the [deportation] enterprise with great energy and enthusiasm” (57), taking legal positions that federal judges have described as “inexplicable” and “disappointing, even shocking” (97).
All the while, 400,000 people cycle through immigration prisons annually--429,000 in fiscal year 2011 alone--where sexual abuse is rampant, deaths more common than they should be, and into which detainees seem to disappear: lawyers and family members, he recounts, are frequently unable to find out where a detainee is held (90-93). Not surprisingly, many individuals give up their fight to remain in the United States not because they lack a plausible argument to stay, but because they cannot bear the indignities of immigration imprisonment (94).
Once outside the United States they become devoid of legal remedies. Even individuals deported on a basis that was later deemed erroneous lack the power to return. The Board of Immigration Appeals steadfastly maintains that its jurisdiction ends where the rest of the world begins—at the country’s territorial boundaries. Such a position, Kanstroom argues, is historically inconsistent and doctrinally troubling: “Should the place where such a claimant happens to stand completely govern the resolution of powerful rights claims? The answer,” he adds, “has long been no” (172). Tax law, for example, reaches United States nationals living abroad, as do the prohibition against treason and military draft registration requirements (169).
All of these support his argument that, in some instances, noncitizens should be able to raise claims from abroad. None, however, is as surprising as his reliance on the legal history of slavery and, in particular, the Dred Scott case. Chief Justice Taney’s “constitutional method,” Kanstroom argues, is potentially useful to deportees: “Taney ironically relied on what might now be considered a rather protective and progressive idea: that the Constitution applied outside the existing states of the Union” (172-73). Taney’s specific application, protecting slavery, “has rightly been definitively repudiated,” he adds, but his understanding of the Constitution as reaching beyond the United States’ borders may help deportees make the claim that they too deserve to have their day in court (173).
Whether or not a particular person is allowed to enter or remain in the United States is a different and equally complicated question. Rather than rely on the misguided rhetoric of immigrant criminality or the one-size-fits-all fixation with territoriality, Kanstroom suggests a mix of “moderately flexible ideas of discretion, judicial oversight, and a humane understanding of basic human rights principles, especially those that mandate proportionality and reject arbitrariness whenever state power is brought to bear against people, regardless of their legal status or their location” (211).
There is nothing radical in these words. He does not propose a wholesale revamping of the rule of law or the end of the nation-state and its sovereign prerogatives. Instead, he merely proposes that deportation law join the family of law governed by principles of equity and the promotion of human dignity, and that unravels under the watchful eyes of the courts. Sadly, deportation law is so far afield, as Kanstroom distressingly exposes, that if these reforms were to occur we would experience a legal upheaval. Until that happens, those of us with much to learn about our nation’s deportation apparatus will do well to continue to rely on his insight and experience to disentangle the complexities of deportation law and shed light on its human impact.
César Cuauhtémoc García Hernández is an assistant professor at Capital University Law School and publisher of crImmigration.com, a blog about the convergence of criminal law and immigration law, which was ranked among the 100 best law blogs of 2012 by the ABA Journal. Take a minute to vote for crImmigration.com as your favorite source of legal information by going to the ABA Journal's web site and finding crImmigration.com listed in the "niche" category. A version of this article appears on crImmigration.com.
December 4, 2012
From the Bookshelves: The Boy Kings of Texas: A Memoir by Domingo Martinez
Lyrical and gritty, this authentic coming-of-age story about a border-town family in Brownsville, Texas, insightfully illuminates a little-understood corner of America. Domingo Martinez lays bare his interior and exterior worlds as he struggles to make sense of the violent and the ugly, along with the beautiful and the loving, in a Texas border town in the 1980s. Partly a reflection on the culture of machismo and partly an exploration of the author’s boyhood spent in his sister’s hand-me-down clothes, this book delves into the enduring, complex bond between Martinez and his deeply flawed but fiercely protective older brother, Daniel. It features a cast of memorable characters, including his gun-hoarding former farmhand, Gramma, and “the Mimis”— two of his older sisters who for a short, glorious time manage to transform themselves from poor Latina adolescents into upper-class white girls. Martinez provides a glimpse into a society where children are traded like commerce, physical altercations routinely solve problems, drugs are rampant, sex is often crude, and people depend on the family witch doctor for advice. Charming, painful, and enlightening, this book examines the traumas and pleasures of growing up in South Texas and the often terrible consequences when different cultures collide on the banks of a dying river.Finalist for the 2012 National Book Award.
December 3, 2012
Evangelicals Push for LegalizationFrom the San Fancisco Chronicle:
Richard Land endorsed Mitt Romney, opposes same-sex marriage and abortion rights, and is a leader in one of the nation's largest organizations of Southern Baptists.
But on Tuesday he and other conservative Christians - as well as antitax leader Grover Norquist - will be in Washington to lobby for a major goal of President Obama's second term: opening the path to citizenship for immigrants.
It's the right thing to do from a moral perspective, say Land and other evangelical Christian leaders. But after Obama won 71 percent of the Latino vote, Land, a onetime President George W. Bush federal appointee, acknowledged the political rationale behind backing immigration reform: "It's called reality."
Conservative evangelical Christians are a rock-solid part of the GOP political base, so when they talk, Republicans listen. Many have long advocated some kind of reform, but when they gather Tuesday as part of a bipartisan national strategy session sponsored by the National Immigration Forum, they will have the ear of Republican lawmakers as at no time in the past 25 years.
And while Democrats may loathe their conservative positions on other social issues, analysts say liberals must hold their noses and hope evangelicals can persuade the GOP to support reform. Read more...
Latinos and the 2012 Elections
Current Population Survey: 2011
The tables include detailed statistics about five-year age groups by sex, the 55-and-older population, the Hispanic population, the black population, and the Asian population. The tables provide a wide range of social, economic and housing characteristics, such as marital status, educational attainment, nativity, employment status, occupation, poverty and housing tenure.